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Docket No. ND03-00589

DEPARTMENT OF THE NAVY
 NAVAL DISCHARGE REVIEW BOARD (NDRB)
                     DISCHARGE REVIEW
                   DECISIONAL DOCUMENT

ex-FN, USN
Docket No. ND03-00589

Applicant’s Request

The application for discharge review was received on 20030221.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040617.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  I wish to have my discharge upgraded from general under honorable conditions to honorable.  I feel that my service warrents a Honorable discharge.

2.  I feel I was unfairly treated as I was discharged and the other individual was allowed to remain in the service.”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214 (2)
Letter to Department of Veterans Affairs from Applicant, dated August 28, 2002
Letter of appreciation, dated May 17, 2001
Seventy-three pages from Applicant’s service/medical records

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive: USNR (DEP)	991129 - 000117	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  000118		Date of Discharge:  020507

Length of Service (years, months, days):

	Active:    02  03  20
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  34

Highest Rate:  FN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (2)	Behavior:  1.67 (3)		OTA:  1.78

Military Decorations:  None

Unit/Campaign/Service Awards:  N&MCOSR, SSDR

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events:

000608:	NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ, Article 92 (2 specs): (1) Wrongfully engaging in public displays of affection, (2) Underage drinking.
	Award: Forfeiture of $200 per month for 1 month, restriction and extra duty for 14 days.  No indication of appeal in the record.

000608:	Retention Warning: Advised of deficiency (Unauthorized absence and fail to obey orders and underage drinking.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

000823:	NJP for violation of UCMJ, Article 92: Failure to obey a lawful written order, to wit: COMNAVFORJAPANINST 5800.29H, underage drinking, violation of UCMJ, Article 128: Assault upon persons in the execution of law enforcement duties, violation of UCMJ, Article 134: Drunk and disorderly conduct.
	Award: Forfeiture of $502 per month for 1 month, restriction and extra duty for 45 days.  No indication of appeal in the record.

000823:	Retention Warning: Advised of deficiency (Failure to obey a lawful written order, to wit: COMNAVFORJAPANINST 5800.29H, underage drinking, assault upon persons in the execution of law enforcement duties, and drunk and disorderly conduct on 000802.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010622:	NJP for violation of UCMJ, Article 91: Treat with contempt and language towards LTJG and HMC by yelling profanity on 010621, violation of UCMJ, Article 128: Unlawfully strike SM2 on 010621 on the body with her fists, violation of UCMJ, Article 134: Drunk and disorderly conduct on 010621.
	Award: Restriction and extra duty for 45 days.  No indication of appeal in the record.

010629:	Retention Warning: Advised of deficiency (Disrespectful in language towards a Commissioned Officer and Chief Petty Officer, assault consummated by a battery, and drunk and disorderly on 010621.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020503:	NJP for violation of UCMJ, Article 134: Underage drinking on 020503.
	Award: Restriction for 30 days.  No indication of appeal in the record.

020507:	DD Form 214: Applicant discharged general (under honorable conditions) by reason of misconduct due to a pattern of misconduct, authority:  NAVMILPERSMAN, Article 1910-140.

Applicant’s discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020507 with a general (under honorable conditions) for misconduct due to a pattern of misconduct (A).  In the absence of the discharge package, the Board presumed regularity in the conduct of governmental affairs (B) and, after a thorough review of available records, supporting documents, facts, and circumstances unique to this case, found that the discharge was proper and equitable (C and D).

Issues 1-2:  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. A characterization of service of general (under honorable conditions) is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) on four separate occasions thus substantiating the misconduct.  The Applicant’s summary of service clearly reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, and demonstrated she was unsuitable for further service. An upgrade to honorable would be inappropriate.  Relief denied.

There is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate her misconduct while on active duty.  

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to her discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT

If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness.  You may view DoD Directive 1332.28 and other Decisional Documents by going online at “afls14.jag.af.mil”.  

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
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